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Federal appeals court takes up contraceptive mandate

WASHINGTON — A federal Appeals Court is considering whether for-profit businesses can be exempted from a contraceptive mandate in the health care law because of the owners’ religious views.

The law already exempts houses of worship from the requirement, but two brothers who own businesses in Ohio argue that they shouldn’t have to comply.

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The brothers, Francis and Philip M. Gilardi, say the requirement would force them to violate their Roman Catholic religious beliefs and moral values by providing contraceptives such as the Plan B pill for their employees.

At a hearing on Tuesday, Judge Harry T. Edwards was skeptical of the Gilardis’ argument. He told their lawyer, Francis Manion, that sometimes religious freedom has to yield to the greater good. Edwards stressed that the Giraldis’ companies, Freshway Foods and Freshway Logistics of Sidney, Ohio, are not religious groups.

Edwards, who was appointed by President Jimmy Carter, indicated that it is likely the government will prevail.

The other two judges on the panel didn’t indicate how they are leaning in the argument, but they had more pointed questions for Justice Department lawyer Alisa Klein than they did for Manion. Judge Janice Rogers Brown, an appointee of President George W. Bush, asked Klein whether the government is asking the Giraldis to give up their constitutional rights. Klein responded that the Giraldis weren’t making a constitutional claim, but rather seeking an injunction under the Religious Freedom Restoration Act.

Brown asked Klein whether she is saying that for religiously observant owners of corporations there is no right to free exercise of religion.

‘‘There is no substantial burden on shareholders,’’ Klein responded, adding that it is the corporation that has to meet the obligation.

In dismissing the Giraldis’ bid for an injunction, trial court Judge Emmet G. Sullivan had rejected their contention that requiring the companies to comply with the contraceptive mandate was the same as requiring the Giraldis themselves to do so.

‘‘The Freshway Corporations are engaged in purely commercial conduct and do not exercise religion’’ under the applicable law, Sullivan wrote.

In court papers, the Giraldis argued that corporations can and often do engage in ‘‘quintessentially religious acts such as tithing, donating money to charities, and committing to act in accordance with the teachings of a religious faith,’’ as they contended their businesses do. They say they face more than $14.4 million in annual penalties if they don’t comply with the contraceptive mandate.

A separate Appeals Court panel has barred the government from enforcing the mandate against the Giraldis while they appeal their case.

The case comes as two other Appeals Court circuits have issued conflicting rulings in similar cases.

The Obama administration has asked the Supreme Court to take up a case involving the Hobby Lobby craft store chain and its sister company, Mardel Christian bookstore. The Oklahoma businesses won a temporary exemption from having to cover morning-after pills, similar emergency birth control methods, and intrauterine devices, after the US Court of Appeals for the 10th Circuit ruled that the companies were likely to prevail in the case.

But the US Court of Appeals for the Third Circuit ruled against the Mennonite owners of a Pennsylvania furniture manufacturing company who claimed that their constitutional rights were violated by the contraceptive requirement.

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